[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3043 Engrossed in House (EH)]

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115th CONGRESS
  1st Session
                                H. R. 3043

_______________________________________________________________________

                                 AN ACT


 
        To modernize hydropower policy, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Hydropower Policy Modernization Act 
of 2017''.

SEC. 2. HYDROPOWER REGULATORY IMPROVEMENTS.

    (a) Sense of Congress on the Use of Hydropower Renewable 
Resources.--It is the sense of Congress that--
            (1) hydropower is a renewable resource for purposes of all 
        Federal programs and is an essential source of energy in the 
        United States; and
            (2) the United States should increase substantially the 
        capacity and generation of clean, renewable hydropower that 
        would improve environmental quality in the United States.
    (b) Modifying the Definition of Renewable Energy to Include 
Hydropower.--Section 203 of the Energy Policy Act of 2005 (42 U.S.C. 
15852) is amended--
            (1) in subsection (a), by striking ``the following 
        amounts'' and all that follows through paragraph (3) and 
        inserting ``not less than 15 percent in fiscal year 2017 and 
        each fiscal year thereafter shall be renewable energy.''; and
            (2) in subsection (b), by striking paragraph (2) and 
        inserting the following:
            ``(2) Renewable energy.--The term `renewable energy' means 
        electric energy generated from solar, wind, biomass, landfill 
        gas, ocean (including tidal, wave, current, and thermal), 
        geothermal, or municipal solid waste, or from a hydropower 
        project.''.
    (c) Preliminary Permits.--Section 5 of the Federal Power Act (16 
U.S.C. 798) is amended--
            (1) in subsection (a), by striking ``three'' and inserting 
        ``4''; and
            (2) by amending subsection (b) to read as follows:
    ``(b) The Commission may--
            ``(1) extend the period of a preliminary permit once for 
        not more than 4 additional years beyond the 4 years permitted 
        by subsection (a) if the Commission finds that the permittee 
        has carried out activities under such permit in good faith and 
        with reasonable diligence; and
            ``(2) if the period of a preliminary permit is extended 
        under paragraph (1), extend the period of such preliminary 
        permit once for not more than 4 additional years beyond the 
        extension period granted under paragraph (1), if the Commission 
        determines that there are extraordinary circumstances that 
        warrant such additional extension.''.
    (d) Time Limit for Construction of Project Works.--Section 13 of 
the Federal Power Act (16 U.S.C. 806) is amended in the second sentence 
by striking ``once but not longer than two additional years'' and 
inserting ``for not more than 8 additional years,''.
    (e) License Term.--Section 15(e) of the Federal Power Act (16 
U.S.C. 808(e)) is amended--
            (1) by striking ``(e) Except'' and inserting the following:
    ``(e) License Term on Relicensing.--
            ``(1) In general.--Except''; and
            (2) by adding at the end the following:
            ``(2) Consideration.--In determining the term of a license 
        under paragraph (1), the Commission shall consider, among other 
        things, project-related investments to be made by the licensee 
        under a new license issued under this section, as well as 
        project-related investments made by a licencee over the term of 
        the existing license (including any terms under annual 
        licenses). In considering such investments, the Commission 
        shall give the same weight to--
                    ``(A) investments to be made by the licensee to 
                implement a new license issued under this section, 
                including--
                            ``(i) investments in redevelopment, new 
                        construction, new capacity, efficiency, 
                        modernization, rehabilitation, and safety 
                        improvements; and
                            ``(ii) investments in environmental, 
                        recreation, and other protection, mitigation, 
                        or enhancement measures that will be required 
                        or authorized by the license; and
                    ``(B) investments made by the licensee over the 
                term of the existing license (including any terms under 
                annual licenses), beyond those required by the existing 
                license when issued, that--
                            ``(i) resulted in, during the term of the 
                        existing license--
                                    ``(I) redevelopment, new 
                                construction, new capacity, efficiency, 
                                modernization, rehabilitation, or 
                                safety improvements; or
                                    ``(II) environmental, recreation, 
                                or other protection, mitigation, or 
                                enhancement measures; and
                            ``(ii) did not result in the extension of 
                        the term of the existing license by the 
                        Commission.''.
    (f) Alternative Conditions and Prescriptions.--Section 33 of the 
Federal Power Act (16 U.S.C. 823d) is amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by striking ``deems'' and 
                inserting ``determines'';
                    (B) in paragraph (2)(B), in the matter preceding 
                clause (i), by inserting ``determined to be necessary'' 
                before ``by the Secretary'';
                    (C) by striking paragraph (4); and
                    (D) by striking paragraph (5);
            (2) in subsection (b)--
                    (A) by striking paragraph (4); and
                    (B) by striking paragraph (5); and
            (3) by adding at the end the following:
    ``(c) Further Conditions.--This section applies to any further 
conditions or prescriptions proposed or imposed pursuant to section 
4(e), 6, or 18.''.

SEC. 3. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.

    (a) Hydropower Licensing and Process Improvements.--Part I of the 
Federal Power Act (16 U.S.C. 792 et seq.) is amended by adding at the 
end the following:

``SEC. 34. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.

    ``(a) Definition.--In this section, the term `Federal 
authorization'--
            ``(1) means any authorization required under Federal law 
        with respect to an application for a license under this part; 
        and
            ``(2) includes any permits, special use authorizations, 
        certifications, opinions, or other approvals as may be required 
        under Federal law to approve or implement the license under 
        this part.
    ``(b) Designation as Lead Agency.--
            ``(1) In general.--The Commission shall act as the lead 
        agency for the purposes of coordinating all applicable Federal 
        authorizations and for the purposes of complying with the 
        National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
        seq.).
            ``(2) Other agencies and indian tribes.--
                    ``(A) In general.--Each Federal, State, and local 
                government agency and Indian tribe considering an 
                aspect of an application for Federal authorization 
                shall coordinate with the Commission and comply with 
                the deadline established in the schedule developed for 
                the license under this part in accordance with the rule 
                issued by the Commission under subsection (c).
                    ``(B) Identification.--The Commission shall 
                identify, as early as practicable after it is notified 
                by the applicant for a license under this part, any 
                Federal or State agency, local government, or Indian 
                tribe that may consider an aspect of an application for 
                a Federal authorization.
                    ``(C) Notification.--
                            ``(i) In general.--The Commission shall 
                        notify any agency and Indian tribe identified 
                        under subparagraph (B) of the opportunity to 
                        participate in the process of reviewing an 
                        aspect of an application for a Federal 
                        authorization.
                            ``(ii) Deadline.--Each agency and Indian 
                        tribe receiving a notice under clause (i) shall 
                        submit a response acknowledging receipt of the 
                        notice to the Commission within 30 days of 
                        receipt of such notice and request.
                    ``(D) Issue identification and resolution.--
                            ``(i) Identification of issues.--Federal, 
                        State, and local government agencies and Indian 
                        tribes that may consider an aspect of an 
                        application for Federal authorization shall 
                        identify, as early as possible, and share with 
                        the Commission and the applicant, any issues of 
                        concern identified during the pendency of the 
                        Commission's action under this part relating to 
                        any Federal authorization that may delay or 
                        prevent the granting of such authorization, 
                        including any issues that may prevent the 
                        agency or Indian tribe from meeting the 
                        schedule established for the license under this 
                        part in accordance with the rule issued by the 
                        Commission under subsection (c).
                            ``(ii) Issue resolution.--The Commission 
                        may forward any issue of concern identified 
                        under clause (i) to the heads of the relevant 
                        State and Federal agencies (including, in the 
                        case of an issue of concern identified by a 
                        State or local government agency or Indian 
                        tribe, the Federal agency overseeing the 
                        delegated authority, or the Secretary of the 
                        Interior with regard to an issue of concern 
                        identified by an Indian tribe, as applicable) 
                        for resolution. If the Commission forwards an 
                        issue of concern to the head of a relevant 
                        agency, the Commission and the relevant agency 
                        shall enter into a memorandum of understanding 
                        to facilitate interagency coordination and 
                        resolution of such issues of concern, as 
                        appropriate.
    ``(c) Schedule.--
            ``(1) Commission rulemaking to establish process to set 
        schedule.--Not later than 180 days after the date of enactment 
        of this section the Commission shall, in consultation with the 
        appropriate Federal agencies, issue a rule, after providing for 
        notice and public comment, establishing a process for setting a 
        schedule following the filing of an application under this part 
        for a license for the review and disposition of each Federal 
        authorization.
            ``(2) Elements of scheduling rule.--In issuing a rule under 
        this subsection, the Commission shall ensure that the schedule 
        for each Federal authorization--
                    ``(A) includes deadlines for actions by--
                            ``(i) any Federal or State agency, local 
                        government, or Indian tribe that may consider 
                        an aspect of an application for the Federal 
                        authorization;
                            ``(ii) the applicant;
                            ``(iii) the Commission; and
                            ``(iv) other participants in any applicable 
                        proceeding;
                    ``(B) is developed in consultation with the 
                applicant and any agency and Indian tribe that submits 
                a response under subsection (b)(2)(C)(ii);
                    ``(C) provides an opportunity for any Federal or 
                State agency, local government, or Indian tribe that 
                may consider an aspect of an application for the 
                applicable Federal authorization to identify and 
                resolve issues of concern, as provided in subsection 
                (b)(2)(D);
                    ``(D) complies with applicable schedules 
                established under Federal and State law;
                    ``(E) ensures expeditious completion of all 
                proceedings required under Federal and State law, to 
                the extent practicable; and
                    ``(F) facilitates completion of Federal and State 
                agency studies, reviews, and any other procedures 
                required prior to, or concurrent with, the preparation 
                of the Commission's environmental document required 
                under the National Environmental Policy Act of 1969 (42 
                U.S.C. 4321 et seq.).
    ``(d) Transmission of Final Schedule.--
            ``(1) In general.--For each application for a license under 
        this part, the Commission shall establish a schedule in 
        accordance with the rule issued by the Commission under 
        subsection (c). The Commission shall publicly notice and 
        transmit the final schedule to the applicant and each agency 
        and Indian tribe identified under subsection (b)(2)(B).
            ``(2) Response.--Each agency and Indian tribe receiving a 
        schedule under this subsection shall acknowledge receipt of 
        such schedule in writing to the Commission within 30 days.
    ``(e) Adherence to Schedule.--All applicants, other licensing 
participants, and agencies and Indian tribes considering an aspect of 
an application for a Federal authorization shall meet the deadlines set 
forth in the schedule established pursuant to subsection (d)(1).
    ``(f) Application Processing.--The Commission, Federal, State, and 
local government agencies, and Indian tribes may allow an applicant 
seeking a Federal authorization to fund a third-party contractor 
selected by such an agency or tribe to assist in reviewing the 
application. All costs of an agency or tribe incurred pursuant to 
direct funding by the applicant, including all costs associated with 
the third party contractor, shall not be considered costs of the United 
States for the administration of this part under section 10(e).
    ``(g) Commission Recommendation on Scope of Environmental Review.--
For the purposes of coordinating Federal authorizations for each 
license under this part, the Commission shall consult with and make a 
recommendation to agencies and Indian tribes receiving a schedule under 
subsection (d) on the scope of the environmental review for all Federal 
authorizations for such license. Each Federal and State agency and 
Indian tribe shall give due consideration and may give deference to the 
Commission's recommendations, to the extent appropriate under Federal 
law.
    ``(h) Extension of Deadline.--
            ``(1) Application.--A Federal, State, or local government 
        agency or Indian tribe that is unable to complete its 
        disposition of a Federal authorization by the deadline set 
        forth in the schedule established under subsection (d)(1) 
        shall, not later than 30 days prior to such deadline, file for 
        an extension with the Commission.
            ``(2) Extension.--The Commission shall only grant an 
        extension filed for under paragraph (1) if the agency or Indian 
        tribe demonstrates, based on the record maintained under 
        subsection (i), that complying with the schedule established 
        under subsection (d)(1) would prevent the agency or tribe from 
        complying with applicable Federal or State law. If the 
        Commission grants the extension, the Commission shall set a 
        reasonable schedule and deadline, that is not later than 90 
        days after the deadline set forth in the schedule established 
        under subsection (d)(1), for the agency or tribe to complete 
        its disposition of the Federal authorization.
    ``(i) Consolidated Record.--The Commission shall, with the 
cooperation of Federal, State, and local government agencies and Indian 
tribes, maintain a complete consolidated record of all decisions made 
or actions taken by the Commission or by a Federal administrative 
agency or officer (or State or local government agency or officer or 
Indian tribe acting under delegated Federal authority) with respect to 
any Federal authorization. Such record shall constitute the record for 
judicial review under section 313(b).
    ``(j) Submission of License Recommendations, Conditions, and 
Prescriptions.--
            ``(1) Submission of recommendations.--Any Federal or State 
        agency that is providing recommendations with respect to a 
        license proceeding under this part shall submit to the 
        Commission for inclusion in the consolidated record relating to 
        the license proceeding maintained under subsection (i)--
                    ``(A) the recommendations;
                    ``(B) the rationale for the recommendations; and
                    ``(C) any supporting materials relating to the 
                recommendations.
            ``(2) Written statement.--In a case in which a Federal 
        agency is making a determination with respect to a covered 
        measure (as defined in section 35(a)), the head of the Federal 
        agency shall submit to the Commission for inclusion in the 
        consolidated record, in addition to the information required 
        under paragraph (1), a written statement demonstrating that the 
        Federal agency gave equal consideration to the effects of the 
        covered measure on--
                    ``(A) energy supply, distribution, cost, and use;
                    ``(B) flood control;
                    ``(C) navigation;
                    ``(D) water supply; and
                    ``(E) air quality and the preservation of other 
                aspects of environmental quality.
            ``(3) Information from other agencies.--In preparing a 
        written statement under paragraph (2), the head of a Federal 
        agency may make use of information produced or made available 
        by other agencies with relevant expertise in the factors 
        described in subparagraphs (A) through (E) of that paragraph.
    ``(k) Delegation.--A Secretary may delegate the authority to 
determine a condition to be necessary under section 4(e), or to 
prescribe a fishway under section 18, to an officer of the applicable 
department based, in part, on the ability of the officer to evaluate 
the broad effects of such condition or prescription on--
            ``(1) the applicable project; and
            ``(2) the factors described in subparagraphs (A) through 
        (E) of subsection (j)(2).
    ``(l) No Effect on Other Laws.--Nothing in this section shall be 
construed to affect any requirement of the Federal Water Pollution 
Control Act, the Fish and Wildlife Coordination Act, the Endangered 
Species Act of 1973, section 14 of the Act of March 3, 1899 (commonly 
known as the Rivers and Harbors Appropriation Act of 1899), and those 
provisions in subtitle III of title 54, United States Code commonly 
known as the National Historic Preservation Act, with respect to an 
application for a license under this part.

``SEC. 35. TRIAL-TYPE HEARINGS.

    ``(a) Definition of Covered Measure.--In this section, the term 
`covered measure' means--
            ``(1) a condition determined to be necessary under section 
        4(e), including an alternative condition proposed under section 
        33(a);
            ``(2) fishways prescribed under section 18, including an 
        alternative prescription proposed under section 33(b); or
            ``(3) any action by the Secretary to exercise reserved 
        authority under the license to prescribe, submit, or revise any 
        condition to a license under the first proviso of section 4(e) 
        or fishway prescribed under section 18.
    ``(b) Authorization of Trial-type Hearing.--An applicant for a 
license under this part (including an applicant for a license under 
section 15) and any party to a license proceeding shall be entitled to 
a determination on the record, after opportunity for a trial-type 
hearing of not more than 120 days, on any disputed issues of material 
fact with respect to an applicable covered measure.
    ``(c) Deadline for Request.--A request for a trial-type hearing 
under this section shall be submitted not later than 60 days after the 
date on which, as applicable--
            ``(1) the Secretary determines the condition to be 
        necessary under section 4(e) or prescribes the fishway under 
        section 18; or
            ``(2) the Secretary exercises reserved authority under the 
        license to prescribe, submit, or revise any condition to a 
        license under the first proviso of section 4(e) or fishway 
        prescribed under section 18, as appropriate.
    ``(d) No Requirement to Exhaust.--By electing not to request a 
trial-type hearing under subsection (c), a license applicant and any 
other party to a license proceeding shall not be considered to have 
waived the right of the applicant or other party to raise any issue of 
fact or law in a non-trial-type proceeding, but no issue may be raised 
for the first time on rehearing or judicial review of the license 
decision of the Commission.
    ``(e) Administrative Law Judge.--
            ``(1) In general.--All disputed issues of material fact 
        raised by a party in a request for a trial-type hearing 
        submitted under subsection (c) shall be determined in a single 
        trial-type hearing to be conducted by an Administrative Law 
        Judge within the Office of Administrative Law Judges and 
        Dispute Resolution of the Commission, in accordance with the 
        Commission rules of practice and procedure under part 385 of 
        title 18, Code of Federal Regulations (or successor 
        regulations), and within the timeframe established by the 
        Commission for each license proceeding (including a proceeding 
        for a license under section 15) under section 34(d).
            ``(2) Requirement.--The trial-type hearing shall include 
        the opportunity--
                    ``(A) to undertake discovery; and
                    ``(B) to cross-examine witnesses, as applicable.
    ``(f) Stay.--The Administrative Law Judge may impose a stay of a 
trial-type hearing under this section for a period of not more than 120 
days to facilitate settlement negotiations relating to resolving the 
disputed issues of material fact with respect to the covered measure.
    ``(g) Decision of the Administrative Law Judge.--
            ``(1) Contents.--The decision of the Administrative Law 
        Judge shall contain--
                    ``(A) findings of fact on all disputed issues of 
                material fact;
                    ``(B) conclusions of law necessary to make the 
                findings of fact, including rulings on materiality and 
                the admissibility of evidence; and
                    ``(C) reasons for the findings and conclusions.
            ``(2) Limitation.--The decision of the Administrative Law 
        Judge shall not contain conclusions as to whether--
                    ``(A) any condition or prescription should be 
                adopted, modified, or rejected; or
                    ``(B) any alternative condition or prescription 
                should be adopted, modified, or rejected.
            ``(3) Finality.--A decision of an Administrative Law Judge 
        under this section with respect to a disputed issue of material 
        fact shall not be subject to further administrative review.
            ``(4) Service.--The Administrative Law Judge shall serve 
        the decision on each party to the hearing and forward the 
        complete record of the hearing to the Commission and the 
        Secretary that proposed the original condition or prescription.
    ``(h) Secretarial Determination.--
            ``(1) In general.--Not later than 60 days after the date on 
        which the Administrative Law Judge issues the decision under 
        subsection (g) and in accordance with any applicable schedule 
        established by the Commission under section 34(d), the 
        Secretary proposing a covered measure shall file with the 
        Commission a final determination to adopt, modify, or withdraw 
        any condition or prescription that was the subject of a hearing 
        under this section, based on the decision of the Administrative 
        Law Judge.
            ``(2) Record of determination.--The final determination of 
        the Secretary filed with the Commission shall identify the 
        reasons for the decision and any considerations taken into 
        account that were not part of, or were inconsistent with, the 
        findings of the Administrative Law Judge and shall be included 
        in the consolidated record maintained under section 34(i).
    ``(i) Resolution of Matters.--Notwithstanding sections 4(e) and 18, 
if the Commission finds that a final determination under (h)(1) of the 
Secretary is inconsistent with the purposes of this part or other 
applicable law, the Commission may enter into a memorandum of 
understanding with the Secretary to facilitate interagency coordination 
and resolve the matter.
    ``(j) Judicial Review.--The decision of the Administrative Law 
Judge and the record of determination of the Secretary shall be 
included in the record of the applicable licensing proceeding and 
subject to judicial review of the final licensing decision of the 
Commission under section 313(b).

``SEC. 36. LICENSING STUDY IMPROVEMENTS.

    ``(a) In General.--To facilitate the timely and efficient 
completion of the license proceedings under this part, the Commission 
shall, in consultation with applicable Federal and State agencies and 
interested members of the public--
            ``(1) compile current and accepted best practices in 
        performing studies required in such license proceedings, 
        including methodologies and the design of studies to assess the 
        full range of environmental impacts of a project that reflect 
        the most recent peer-reviewed science;
            ``(2) compile a comprehensive collection of studies and 
        data accessible to the public that could be used to inform 
        license proceedings under this part; and
            ``(3) encourage license applicants, agencies, and Indian 
        tribes to develop and use, for the purpose of fostering timely 
        and efficient consideration of license applications, a limited 
        number of open-source methodologies and tools applicable across 
        a wide array of projects, including water balance models and 
        streamflow analyses.
    ``(b) Use of Studies.--To the extent practicable, the Commission 
and other Federal, State, and local government agencies and Indian 
tribes considering an aspect of an application for Federal 
authorization (as defined in section 34) shall use studies and data 
based on current, accepted science in support of their actions. Any 
participant in a proceeding with respect to such a Federal 
authorization shall demonstrate that a study requested by the 
participant is not duplicative of current, existing studies that are 
applicable to the project.
    ``(c) Intra-Watershed Review.--The Commission shall establish a 
program to develop comprehensive plans, at the request of project 
applicants, on a watershed-wide scale, in consultation with the 
applicants, appropriate Federal agencies, and affected States, local 
governments, and Indian tribes, in watersheds with respect to which 
there are more than one application for a project. Upon such a request, 
the Commission, in consultation with the applicants, such Federal 
agencies, and affected States, local governments, and Indian tribes, 
may conduct or commission watershed-wide environmental studies, with 
the participation of at least 2 applicants. Any study conducted under 
this subsection shall apply only to a project with respect to which the 
applicants participate.

``SEC. 37. LICENSE AMENDMENT IMPROVEMENTS.

    ``(a) Qualifying Project Upgrades.--
            ``(1) In general.--As provided in this section, the 
        Commission may approve an application under this section for an 
        amendment to a license issued under this part for a qualifying 
        project upgrade.
            ``(2) Application.--A licensee filing an application for an 
        amendment to a project license, for which the licensee is 
        seeking approval as a qualified project upgrade under this 
        section, shall include in such application information 
        sufficient to demonstrate that the proposed change to the 
        project described in the application is a qualifying project 
        upgrade.
            ``(3) Notice and initial determination on qualification.--
        Not later than 30 days after receipt of an application under 
        paragraph (2), the Commission, in consultation with other 
        Federal agencies, States, and Indian tribes the Commission 
        determines appropriate, shall publish in the Federal Register a 
        notice containing--
                    ``(A) notice of the application filed under 
                paragraph (2);
                    ``(B) an initial determination as to whether the 
                proposed change to the project described in the 
                application for a license amendment is a qualifying 
                project upgrade; and
                    ``(C) a request for public comment on the 
                application and the initial determination.
            ``(4) Public comment and consultation.--The Commission 
        shall, for a period of 45 days beginning on the date of 
        publication of a notice under paragraph (3)--
                    ``(A) accept public comment regarding the 
                application and whether the proposed license amendment 
                is for a qualifying project upgrade; and
                    ``(B) consult with each Federal, State, and local 
                government agency and Indian tribe considering an 
                aspect of an application for any authorization required 
                under Federal law with respect to the proposed license 
                amendment, as well as other interested agencies and 
                Indian tribes.
            ``(5) Final determination on qualification.--Not later than 
        15 days after the end of the public comment and consultation 
        period under paragraph (4), the Commission shall publish in the 
        Federal Register a final determination as to whether the 
        proposed license amendment is for a qualifying project upgrade.
            ``(6) Federal authorizations.--In establishing the schedule 
        for a proposed license amendment for a qualifying project 
        upgrade, the Commission shall require final disposition of all 
        authorizations required under Federal law with respect to an 
        application for such license amendment, other than final action 
        by the Commission, by not later than 120 days after the date on 
        which the Commission publishes a final determination under 
        paragraph (5) that the proposed license amendment is for a 
        qualifying project upgrade.
            ``(7) Commission action.--Not later than 150 days after the 
        date on which the Commission publishes a final determination 
        under paragraph (5) that a proposed license amendment is for a 
        qualifying project upgrade, the Commission shall take final 
        action on the license amendment application.
            ``(8) License amendment conditions.--Any condition or 
        prescription included in or applicable to a license amendment 
        for a qualifying project upgrade approved under this 
        subsection, including any condition, prescription, or other 
        requirement of a Federal authorization, shall be limited to 
        those that are--
                    ``(A) necessary to protect public safety; or
                    ``(B) reasonable, economically feasible, and 
                essential to prevent loss of or damage to, or to 
                mitigate adverse effects on, fish and wildlife 
                resources, water supply, and water quality that are 
                directly caused by the construction and operation of 
                the qualifying project upgrade, as compared to the 
                environmental baseline existing at the time the 
                Commission approves the application for the license 
                amendment.
            ``(9) Rulemaking.--Not later than 180 days after the date 
        of enactment of this section, the Commission shall, after 
        notice and opportunity for public comment, issue a rule to 
        implement this subsection.
            ``(10) Definitions.--For purposes of this subsection:
                    ``(A) Qualifying project upgrade.--The term 
                `qualifying project upgrade' means a change to a 
                project licensed under this part that meets the 
                qualifying criteria, as determined by the Commission.
                    ``(B) Qualifying criteria.--The term `qualifying 
                criteria' means, with respect to a project licensed 
                under this part, a change to the project that--
                            ``(i) if carried out, would be unlikely to 
                        adversely affect any species listed as 
                        threatened or endangered under the Endangered 
                        Species Act of 1973 or result in the 
                        destruction or adverse modification of critical 
                        habitat, as determined in consultation with the 
                        Secretary of the Interior or Secretary of 
                        Commerce, as appropriate, in accordance with 
                        section 7 of the Endangered Species Act of 
                        1973;
                            ``(ii) is consistent with any applicable 
                        comprehensive plan under section 10(a)(2);
                            ``(iii) includes only changes to project 
                        lands, waters, or operations that, in the 
                        judgment of the Commission, would result in 
                        only insignificant or minimal cumulative 
                        adverse environmental effects;
                            ``(iv) would be unlikely to adversely 
                        affect water quality or water supply; and
                            ``(v) proposes to implement--
                                    ``(I) capacity increases, 
                                efficiency improvements, or other 
                                enhancements to hydropower generation 
                                at the licensed project;
                                    ``(II) environmental protection, 
                                mitigation, or enhancement measures to 
                                benefit fish and wildlife resources or 
                                other natural and cultural resources; 
                                or
                                    ``(III) improvements to public 
                                recreation at the licensed project.
    ``(b) Amendment Approval Processes.--
            ``(1) Rule.--Not later than 1 year after the date of 
        enactment of this section, the Commission shall, after notice 
        and opportunity for public comment, issue a rule establishing 
        new standards and procedures for license amendment applications 
        under this part. In issuing such rule, the Commission shall 
        seek to develop the most efficient and expedient process, 
        consultation, and review requirements, commensurate with the 
        scope of different categories of proposed license amendments. 
        Such rule shall account for differences in environmental 
        effects across a wide range of categories of license amendment 
        applications.
            ``(2) Capacity.--In issuing a rule under this subsection, 
        the Commission shall take into consideration that a change in 
        generating or hydraulic capacity may indicate the potential 
        environmental effects of a proposed license amendment but is 
        not determinative of such effects.
            ``(3) Process options.--In issuing a rule under this 
        subsection, the Commission shall take into consideration the 
        range of process options available under the Commission's 
        regulations for license applications and adapt such options to 
        amendment applications, where appropriate.''.

SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.

    (a) Licenses.--Section 4(e) of the Federal Power Act (16 U.S.C. 
797(e)) is amended--
            (1) by striking ``adequate protection and utilization of 
        such reservation'' and all that follows through ``That no 
        license affecting the navigable capacity'' and inserting 
        ``adequate protection and utilization of such reservation: 
        Provided further, That no license affecting the navigable 
        capacity''; and
            (2) by striking ``deem'' and inserting ``determine''.
    (b) Operation of Navigation Facilities.--Section 18 of the Federal 
Power Act (16 U.S.C. 811) is amended by striking the second, third, and 
fourth sentences.

SEC. 5. CONSIDERATION OF INVASIVE SPECIES.

    Section 18 of the Federal Power Act (16 U.S.C. 811) is amended by 
inserting after ``the Secretary of Commerce.'' the following: ``In 
prescribing a fishway, the Secretary of Commerce or the Secretary of 
the Interior, as appropriate, shall consider the threat of invasive 
species.''.

SEC. 6. EXAMINATION OF LICENSES FOR PROJECTS LOCATED IN DISASTER AREAS.

    Not later than one year after the date of enactment of this Act, 
the Federal Energy Regulatory Commission may examine the license issued 
by the Commission under part I of the Federal Power Act for any project 
that is located in an area that was declared by the President to be a 
disaster area in 2017.

SEC. 7. STUDIES FOR NON-FEDERAL HYDROPOWER.

    Notwithstanding any other provision of law, if the Federal Energy 
Regulatory Commission has in place a memorandum of understanding with 
another Federal agency for non-federal hydropower with respect to a 
project licensed under part I of the Federal Power Act (regardless of 
explicit Congressional authorization for such non-federal hydropower), 
the other Federal agency may fully study and review the potential 
expansion of such non-federal hydropower at the project, including a 
review of seasonal pool levels and slowing flood releases.

            Passed the House of Representatives November 8, 2017.

            Attest:

                                                                 Clerk.
115th CONGRESS

  1st Session

                               H. R. 3043

_______________________________________________________________________

                                 AN ACT

        To modernize hydropower policy, and for other purposes.